Wednesday, 26 June 2024

Under which circumstances the high court may issue writ of Habeas Corpus and certiorari against judicial order?

 Pronouncing upon the issue whether a writ of Habeas

Corpus would lie against an order of remand under Section 167,

by referring to the decision in case of Manibhai Ratilal Patel Vs.

State of Gujarat and ors, (2013) 1 SCC 314 which had taken a view that a writ of Habeas Corpus shall not be entertained when a person is committed to judicial custody or police custody by the Competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner, reference was made to a decision in case of SFIO Vs. Rahul Modi, 2019(5) SCC 260 which had laid down the position of law as below:-

“19 The law is thus clear that in a Habeas Corpus proceedings,

a Court is to have regard to the legality or otherwise of the detention

at the time of return and not with reference to the institution of the

proceedings”.

It is in this background the circumstances in which the writ

of Habeas Corpus shall lie, were clearly stipulated in the following

words:-

“If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, a person affected can seek the remedy of Habeas Corpus. Barring such situations, Habeas Corpus petition will not lie.”


36] We have no hesitation in coming to a conclusion that in the

present case, both the conditions are clearly attracted, as the

remand of the CCL, by three distinct orders passed by the Board is absolutely illegal as the impugned order, are afflicted with vice of lack of jurisdiction and further orders of remand being passed by the Board, in an absolutely mechanical manner, without

considering the most significant and pivotal fact that the CCL

continue to be on bail and there is no cancellation or revocation of the order, enlarging him on bail.

37] The act of the respondent therefore, squarely fall within the

parameters laid down in Gautam Navlakha (supra) for

entertaining a writ in the nature of Habeas Corpus. 

Looking to the manner in which the entire matter has been

dealt with by the Investigating Agency and also the various orders passed by the Board upon the application preferred by it, we must clearly express that this is one of the fit case where we shall exercise our jurisdiction by issuing a writ in the nature of Habeas Corpus, as prayed for in prayer clause (a) and issue a writ in the nature of certiorari for quashing the subsequent orders remanding the CCL to Observation Home.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2372 OF 2024

Pooja Gagan Jain v. State of Maharashtra

CORAM : BHARATI DANGRE &

MANJUSHA DESHPANDE, J

DATED : 25th JUNE, 2024.

JUDGMENT :- (PER BHARATI DANGRE, J.)

1] In the early hours of 19.05.2024 a ghastly incident killed

two young individuals in the city of Pune and the cause for the

same happened to be Porsche car rashly driven by Master X, a

child in conflict with law (hereinafter referred to as ‘CCL’).

It is subsequently revealed during the investigation that the

CCL was driving the vehicle under the influence of alcohol and the

brand new car was being driven in a high speed, which resulted

into its crash, after hitting a motorcycle with a pillion rider and

this incident gathered huge attention state wide.

2] The alleged reckless act at the hands of the CCL resulted in

registration of FIR bearing No.306/2024 for the offences under

Section 304A, 279, 337, 338, 427 IPC and 184, 190 and 177 of the

Motor Vehicles Act (Amendment Act 2019).

A huge crowd gathered and the eye witnesses got their

statements recorded about the manner in which the accident

occurred, attributing rash and negligent act to the CCL and as an

immediate reaction, he was held in captivity and had to face

wrath of the public, who manhandled him.

The CCL was apprehended and he being a juvenile (recorded

age being 17 years and 8 months) was produced before Member

No.I of Juvenile Justice B30oard, Pune and Application filed by

his Advocate securing his release on bail was taken up for

consideration.

On the very same day i.e. on 19.05.2024, he came to be

released on bail and we shall come to the said order and

subsequent orders passed by the Board under the Juvenile

Justice Act (Care and Protection of Children) Act 2015 (for short

‘Act of 2015’) read with Maharashtra State Juvenile Justice

(Care and Protection of Children) Rules, 2018, a little later.

3] We must, however, take note of the haphazard manner in

which the entire prosecution agency approached the issue, being

rattled by the public outcry, as the entire Society was stunned by

the impact of the incident, where two young innocent persons lost

their lives and this is a classic case as to how the law enforcing as

well as the law implementing agency reacted to the public

outburst and treaded on a path of owing a moral responsibility of

the CCL and his entire family, by alluding and questioning the

upbringing of the the child belonging to the affluent family, by

projecting their approach as having less regard to the lives of a

common man on the road.

Though at this stage it may be too early to record that the

CCL was guilty of rash and negligent act, we are proceeding on the

basis of the FIR, which accuse him of rash and negligent act, and

the offence prima facie falling under the category of rash, reckless

and negligent driving attracting Section 304A and the other

provisions of the Indian Penal Code and, we, by any chance do not

intend to go into the legality or otherwise of the penal provisions

invoked in the subject FIR, nor are we any manner, have adverted

to any subsequent action of the investigating agency, in

registering subsequent offence against other members of the

family.

Though the manner in which the entire situation has been

handled by the respondents including the investigation wing, we

can only express our dismay and perturbation by describing the

whole approach as an unfortunate incident and hope and trust

that the future course of action to be chartered, shall be in

accordance with existing provisions of law, avoiding any haste.

However, at this stage, while pronouncing upon the the

reliefs sought before us, in the Writ Petition we deem it necessary

to discharge our solemn obligation, by adherence to the Rule of

Law and we feel bound by it, though the respondents, the law


enforcing agencies have succumbed to the public pressure, but we

are of the firm opinion that the Rule of law must prevail in every

situation, howsoever catastrophic or calamitous the situation may

be and as Martin Luther King, has rightly observed, “Injustice

anywhere is a threat to justice everywhere.”.

4] Coming to the facts in hand, upon the CCL being produced

before the Member I of Juvenile Justice Board, Pune, on 19/05/

2024, an order was passed directing his release on bail and the

Principal Magistrate, Juvenile Justice Board and Member II of the

Board, signed the order on 20.05.2024, expressing their

agreement with Member I of the Board.

It will be apposite to reproduce the order, which reads thus :

“CR No.306/2024

Yerwada Police Station.

BAIL ORDER

The present application is filed by Ld. Advocate for Child-in-conflict-withlaw

(In Short ‘CCL’) to release him on bail.

2] It is contended by the Ld. Advocate for CCL that, his name is falsely

implicated in the present act. If the CCL is released on bail he will neither

tamper the evidence of prosecution nor try to abscond from the jurisdiction

of the court. He is ready to furnish solvent surety on his behalf. He is ready

to abide by the conditions imposed on him.

3] Perused of FIR and discussion with CCL and his Grand Father. His Grand

Father has given assurance that, he will

keep the CCL away from the any bad company. He will concentrate on his

study or any vocational course which is useful for his career. He is ready to

abide by the condition imposed on him. Therefore, it is just and proper to

release the CCL on bail. Hence following order is passed.

ORDER

1] The CCL is released on bail on executing his personal bond and

surety bond of Rs. 7,500/- [Seven Thousand Five

Hundred Rupeesl with following conditions.

i] The parent of CCL shall take care of the CCL. They should taken

care that, the CCL will never involve in the offences in like nature in

future.

2] The parent of CCL is directed to keep the CCL present before the

board as and when his presence is required.


3] The parent of CCL is directed to keep away from joining any bad

company.

4] CCL will visit R.T.O office and study all the rules and regulations

and prepare presentation and submit same to Juvenile Justice Board

Within 15 days and CCL will write essay of 300 words on topic in

effect of road accident and their solution.

5] CCL will assist R.T.O. officer and Practice and study traffic rules

for 15 days and submit report same of Juvenile Justice Board.

6] Refer CCL to muktagaon for external deaddiction Counseling after

counseling report submit to the Juvenile Justice Board

7] Consult CCL to psychology and psychiatrist doctor of sasson

Hospital, Pune and submit reports to Juvenile Justice Board, Pune

within 15 days.

Date :- 19/05/2024 ( Signature)

Principal Magistrate,

Juvenile Justice Board, Pune

(Dr.L.N. Danwade) (Smt.K.T. Thorat)

Member I Member II

Juvenile Justice Board, Pune. Juvenile Justice Board, Pune.”

5] The above order passed under Section 12(1) is in

consonance with Section 6 of the Act of 2015, which prescribe the

procedure to be followed by the Board and since the Board was

satisfied that the child alleged to be in conflict with law, who was

accused of an offence was apprehended and produced before it,

deserve his release on bail, subject to the conditions stipulated

therein.

6] Before the ink on the said order could dry, on 21.05.2024,

an application under Section 104 of the Act of 2015 was filed,

subsequent to insertion of Section 304 of IPC in the subject CR,

premised on the basis that the CCL driving the car was not armed

with requisite license for driving the car and he was heavily under

the influence of liquor.

It was also alleged that he was driving the vehicle in

violation of the traffic rules, with breath necking speed, under the

influence of liquor and hence it galloped and hit the Bajaj Pulsar,

which was being pillion ridden and thus is responsible for death of

two persons.

By referring to the order passed by the Board on

19.05.2024, the Application proceed to state that the act of the

CCL was intentional, as after consuming liquor he continued to

drive his four wheeler in a reckless manner and he ought to have

been aware of the consequences and hence by this act, he

indulged himself in a brutal act, of taking two innocent lives.

A request was, therefore, made to review the order dated

19.05.2024 in the wake of the material collected, reflecting that

the CCL had consumed the liquor with his friends in large quantity

and he was under its influence and this was revealed from the

CCTV footage of the hotels, where he had visited and consumed

the liquor for two and half hours and also indulged in smoking. On

collecting the CCTV footage of the crash, where the public

attempted to assault him and since there were eye witnesses to

the incident, and there was huge anger in the public at large,

concern was expressed about his safety.

7] This application resulted in an order being passed by the

Board on 22.05.2024 to which Member I Juvenile Justice Board,

Pune is also a signatory alongwith the Principal Magistrate and

Member II.

The order make reference to the earlier order passed by the

Board on production of the CCL and reason for exercising the

power under Section 104, assuming to be a power of review is

based on the following observation :

“2 On perusal of record, it appears that no case diary was

produced before the Board at the lime of production. The Medical Report

of the Sassoon Hospital states something different than, the production

report and the social background report produced by the Investigating

Officer. On having interaction with the CCL as per Juvenile Justice (Children

Care and Protection) Rules and provision of Juvenile Justice (Children Care

and Protection) Act, different information gathered by the CCL than the

production and social background report. Thereafter, the production order

has been passed by the Board Member-1, considering the reformation of the

CCL. The Board Member-1 has called the say of Learned APP and

Investigating Officer on the bail application on the same day. But,

unfortunately, the learned APP was absent and they being unheard before

deciding the said bail application. It also appears that the Investigating

Officer has not made disclosure true and correct facts before the Board

Member-1. Prima facie, it reveals that the Board Member-1 is misguided by

the police agency. As per Section 12 of the J.J. Act, the Board Member-1 has

released the CCL on bail putting some conditions for his betterment.”

8] On making reference to the application filed under Section

104 of the Act for making amendment, the order record that the

notice was issued to the CCL to file his say and the Board

thereafter considered the submissions advanced on his behalf as

well as the submissions of the learned APP for the State and the

Investigating Officer.

The Board considered the objection about maintainability of

the application in form of Review Application and the argument

advanced on behalf of the CCL, being focused on the aim and

object of the Juvenile Justice Act, being protection of a child, from

any kind of abuse and to consider his best interest, by adopting

child friendly procedure, which shall be in the interest of his

rehabilitation.

A specific argument was advanced on behalf of the CCL that

he was already released on bail considering all the necessary

aspects under the Act of 2015 and his mental, physical and social

health was also impacted in the wake of the incident and his

parents are capable to care for him and to protect him and they

have appointed a security team, outside the house to ensure his

safety.

The learned APP focused upon the aspect of amendment of

the order, under Section 104 of the Act and offered a clarification

that the application is not intended to revoke the order passed

earlier and the most highlighted aspects of the accident, were

placed before the Board. It was also submitted that the wrong act

of the CCL had created apprehensions in the mind of common

people, who had become doubtful about their safety, on the public

road.

It was also argued that after the incident, the CCL became a

victim of mob lynching and if released on bail, there is a moral,

physical and psychological danger posed to his life. Apart from

this, the board was also appraised that the father of the CCL was

arraigned as a co-accused and it is a case of neglected parenting,

and therefore, the custody of the CCL should be transferred to

Observation Home for his safety and rehabilitation.

9] It is in the backdrop of the facts placed before the Board,

with an apprehension expressed by the prosecution, the members

of the board formed the following opinion:-

“11 Further, after completion of examination of Std.12th on 17th May

2024, the CCL left the house for making late night party with the friends in

pub and parents allowed him to go to pub at late night to consume liquor and

allowed to use a Porsche car to go for the party with his friends which

allegedly, not even completed registration as per rules of Road Traffic Office.

The said fact clearly discloses that the parent of the CCL themselves broke

the rules of Motor Vehicle Act. Prima facie it also appears that the CCL has

consumed liquor and without having driving licence drove the unregistered

car rashly and negligently and caused death of two lives on the spot.

Considering above aspects, it prima facie reveals that the CCL has neglected

from proper pareneting by his parents and they have no control over the

conduct and the behaviour of the CCL. The friends circle of the CCL also

seems to be addicted of the substance abuse. Further, the learned Advocate

for the CCL has submitted that the CCL is in mental depression. Therefore,

he needs psychological treatment and proper counseling which is one of the

condition of the bail granted on 19/05/2024. But the said condition could

not be followed. The learned Advocate for the CCL submitted that the

parents of the CCL have appointed a team of security guards through out in

his bungalow. However, the mother of the CCL expressed her fear towards

the CCL that, because of moblynching to the CCL on the date of incident, she

could not follow the conditions mentioned in the bail order dated

19/05/2024. Therefore, the argument of the State that, if the custody of the

CCL is handed over to his parents, will amount to abuse at the hands of

society and his bad company cannot be neglected”.

10] Moreso, in the order passed by the Board, it is clarified that

the Application of the prosecution is not filed for cancellation of

bail of the CCL and the Board is also not desirous of cancelling the

bail, but it is launching the CCL for rehabilitation process as per

Rule 21(1) of Juvenile Justice Rules and reference is then made

to the procedure for rehabilitation to promote the best interest of

the CCL.

Taking note of the social background report of the CCL,

which had disclosed that he is addicted to smoking and

consumption of liquor, the Board highlighted the aim and object of

the act and in particular Section 3(xiii) and by invoking the

power to amend the previous order dated 19.05.2024, in the best

interest of the CCL for launching him in the process of

rehabilitation, in light of the new material placed before it, in his

restoration, without efforts of his rehabilitation was held to be

not in his interest, and, hence, the earlier order came to be

amended for assessment and fulfillment of the child’s

psychological needs as well as for his immediate safety and

security of physical and psychological aspect.

The operative portion of the order categorically reads thus :-

“With the power enthroned in view of Section 3(iv) (vi)(vii) (xiii), Section

12, section 104 of the Juvenile Justice (Care and Protection of Children),

Act, 2015 and Rule 7, Rule 21 of the Maharashtra State Juvenile Justice

(Care and Protection of Children), Rules 2018, following order is passed.

1. For the fulfillment of immediate psychological needs and for his immediate

safety and security, the Child-In-Conflict-With-Law is restored to the

‘Rehabilitation Stay’ at the Observation Home, Pune till 05/06/2024.

2. Comprehensive procedure for rehabilitation is launched for the Child-In-

Conflict-With-Law. After consultation with following authorities as directed

below, this period of rehabilitative state may extended subject to progress

and response of Child-In-Conflict-With-Law in this rehabilitation process.

3. At Observation Home, Pune the Child-In-Conflict-With-Law shall

undergone with rehabilitation process as directed.”

11] In addition, several other directions are issued by the Board

on 22.05.2024, catering to the psychological needs of the CCL, by

referring him to experts and preparing for the De-addiction

programme with the help of expert of ‘Muktangan’ De-addiction

Centre.

The District Child Protection Unit and the Probation Officer

is also directed to ensure participation of the child in conflict with

law, while preparing his individual care plan.

12] The order also comprise of a direction in form of clause

no.13, where the family members of the child are permitted to

have access to him by visiting the Observation Home, Pune,

subject to his physical and psychological safety and security,

twice in a week between 11.00 am. to 12.00 p.m.

The concerned authorities are directed, to prepare an “Exit

Plan” in consultation with the Juvenile Justice Board, so as to

facilitate his return to the social main stream. In addition, an

inquiry is also directed to be launched for appointment of a fit

person of fit facility for the child.


13] In continuation of this order, which directed the CCL to be

restored to the rehabilitation stage at the Observation Home Pune,

till 05.06.2024, an Application is again moved by the

Investigation officer before the Board for extension of the period

of CCL, by 14 days, on the ground that his release will create

obstacle in the progress of investigation and on additional ground

that parents and grand parent of CCL are already in custody and,

therefore, there is nobody to look after him.

Another ground cited for extending the period of custody

cited is collection of additional evidence and it is, therefore,

prayed that the CCL should remain in Observation Home for

further period, as requested.

14] Upon such an Application being preferred, by recording that

the programme for De-addiction and psychological counselling for

the CCL is in progress and by clearly brushing aside the

contention that stay of the CCL in the Observation Home is like

detention in judicial custody, but by securing his stay in

Observation Home, would act to his welfare, the CCL is ordered to

remain in Observation Home till 12.06.2024.

What is relevant to note, is the pertinent observation in the

order to the effect that since videos of the incident have spread on

social media and person in public have seen the CCL, and he shall

be safe and secured in the Observation Home.

15] Another application is preferred for extension of stay

of the CCL in observation home for further period of 14 days and

by order dated 12/06/2024, the board extended his stay till

25/06/2024, by recording that the CCL is progressing in the

sessions conducted by the psychologist, who is helping him to

built coping mechanisms and imbibe strategy towards life, though

the final report from the De-addiction Center is not yet received.

16] It is in the above background, the present petition is filed by

the petitioner, Mrs.Pooja Jain the paternal aunt of the CCL,

seeking issuance of Writ of Habeas Corpus for release of the CCL

forthwith, from the abjectly unlawful and arbitrary custody and

incarceration. In addition, writ of certiorari is prayed for quashing

and setting aside the illegal remand orders dated 22/05/2024,

and 5/06/2024, passed by the Magistrate JJB, Pune, along with

its effect implementation and consequent actions taken

thereunder.

We have heard learned Senior Counsel Mr.Ponda for the

petitioner, who in light of the scheme of the Act of 2015, would

assertively submit that in scheme of the enactment, once a child is

directed to be released on bail, he cannot be sent to an

Observation Home at any rate in the wake of mandate of Section

39 (2) and definitely not under the guise of rehabilitation and

social integration.

By relying upon Section 6(2) of the Act of 2015, he would

submit that at any rate even keeping the child in place of safety

during the process of inquiry, is permissible only when he is not

on bail and once bail is granted, in terms of Section 12(1) of the

Act, there is no question of falling back on the proviso appended to

sub-section (1) of Section 12. Continuing his reading of sub-

section(2) and (3) of Section 12, he would submit that the

restoration of a Juvenile or a Child in observation home or place

of safety is contemplated only when the bail is denied to him.

Mounting a scathing attack on the approach adopted by the

Board, subsequent to the release of CCL on bail on 19/05/2024,

Mr. Ponda would submit that Section 104 of the Act, is a provision

incorporated to carry out an amendment to the order passed by

the Board or the committee, but this power to amend is restrictive

and is relatable to orders passed as to the institution to which the

child is sent or to the person under whose care or supervision, he

is to be placed, and according to him by no stretch of imagination

this power is akin to the power of review. Submitting that the

impugned order was passed purportedly under Section 104 of the

Act of 2015, he would invite our attention to the scope of the

provision, which according to him do not permit recalling of the

bail, granted by the Board or its cancellation, only on the ground

that the child is not safe on being released on bail, as according to

him, the prosecution had never assailed this order either by filing

appeal or adopting any procedure, which is otherwise available to

it.

According to Mr. Ponda, the seriousness of the issue gets

more compounded, as the bail granted in favour of CCL is not

cancelled or set aside by the competent authority, but continue to

remain in force, and as a result he continue to be on bail, but yet

detained in Observation Home, although he has not been subjected

to any re-arrest for committing more serious offence and the bail

having been denied to him on that count. According to him, the

Principal Magistrate, Juvenile Justice Board, has passed a

completely illegal order directing that the child will stay in the

Observation Home, at the same time while the bail granted in his

favour is in force, though he ought to be a free person, once

directed to be released on bail on 19/05/2024.

17] While arguing in favour of his petition seeking issuance of

Writ of Habeas Corpus, Mr. Ponda would press into service two

primary grounds, being the order detaining the CCL being affected

by vice of lack of jurisdiction and he would place reliance upon the

decision of the Apex Court in the case of Gautam Navlakha vs.

NIA1 and particularly paragraph no. 80 thereof, setting out the

two categories, when indulgence can be shown, being lack of

jurisdiction and an order of remand being absolutely illegal.

18] Opposing the said petition, Mr. Hiten Venegavkar, the Public

Prosecutor would vehemently submit that the subsequent order

passed by the Board in no way has cancelled the bail granted in

favour of the CCL, but what is done in exercise of powers under Section 104, is change of the custody of CCL, and now he is put in an observation home, which is in his own interest, for ensuring his safety and for his rehabilitation.

When specifically asked, whether the bail order in favour of

the CCL remain intact, Mr. Venegavkar answered in the

affirmative and according to him the order passed by the Board at

a subsequent point of time in the wake of the changed

circumstances is within the four corners of Section 104.

1 (2022) 13 SCC 542

Questioning the maintainability of the petition seeking

issuance of Writ of Habeas Corpus, he would rely upon the

decision of the Bombay High Court in case of Naresh Goel vs.

Directorate of Enforcement and ors.2 and according to him, it is

categorically held that, when there is no challenge to the remand

order, under Section 167 of CrPC and when the remand orders are

passed by the competent court, the writ in the nature of Habeas

Corpus shall not lie.

Mr. Venegavkar would submit that the said decision has

considered the law laid down on the subject till date, being

summarized in case of V. Senthil Balaji vs The State Represented

by Deputy Director and Ors.3 , that no Writ of Habeas Corpus

would lie and any plea of illegal arrest shall be made before the

Magistrate since custody becomes judicial and once it is brought

to the notice of the Writ Court that the person at the time of filing

of the petition was in judicial custody, the custody having been

granted by a Court of competent jurisdiction, Writ of Habeas

Corpus cannot be entertained, subject to only exceptional

circumstances.

19] On consideration of the submissions advanced, it is

necessary for us to examine two aspects; whether the Writ

Petition seeking a writ in the nature of Habeas Corpus deserve

consideration with the prayer clauses contained therein and

secondly whether the course adopted by the Juvenile Justice

Board, Pune is permissible in the scheme of the Juvenile Justice

(Care and Protection of Children) Act, 2015.

2 SCC OnLine Bom 2446

3 (2024) 3 SCC 51

We would prefer to answer the second question ahead of the

first.

The Juvenile Justice (Care and Protection of Children) Act,

2015, is an enactment relating to children alleged and found to be

in conflict with law and children in need of care and protection by

catering to their basic needs through proper care, protection,

development, treatment, social re-integration, by adopting a child

friendly approach in the adjudication and disposal of the matters

in the best interest of children and for their rehabilitation through the processes provided in form of institutions and bodies

established.

The Juvenile Justice (Care and Protection of Children) Act,

2015 conform to Article 39(e) and (f) as well as Article 45 and 47

of Chapter IV of the Constitution of India, which make the State

responsible for ensuring that all needs of children are met and

their basic human rights are protected. On ratification of the

United Nations Convention on the rights of children, which

required State parties to undertake all appropriate measures in

case of a child, who is accused of violating any penal law, the Act

includes provision for treating the child in a manner consistent

with promotion of child’s sense of dignity and worth, by reenforcing

the child’s respect for the human rights and

fundamental freedom of others and by promoting his reintegration

into the Society.

The term ‘Child’ under the Act, means a person, who has not

completed 18 of age and ‘Juvenile’ is defined to mean a child

below that age.


The Act of 2015 has defined the child care institution in

Section 2(21) to mean Children Home, open shelter, observation

home, special home, place of safety, Specialized Adoption Agency,

any fit facility recognised under the Act for providing care and

protection to children, who are in need of such services.

‘Place of safety’ is also defined in the Act to mean any place

or institution, not being a police lockup or jail, established

separately or attached to an observation home or a special home,

as the case may be, to receive and take care of the children alleged

or found to be in conflict with law, by an order of the Board, both

during inquiry and ongoing rehabilitation on being found guilty,

for a period and the purpose as specified in the order.

20] The General Principles to be followed in administration of

the Act of 2015 are specifically set out in Section 3 and the most

prominent among them includes the following principle, to which

even the impugned order makes reference.

“(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.”

Amongst the two other principles which deserve to be

highlighted, is the principle of institutionalization as

contemplated in Section 3(xii) to be adopted as a last resort after

making a reasonable inquiry. Further Section 3(xvi) must also be

kept in mind as the child/juvenile has a right to receive fair

treatment, which include right to fair hearing, rule against bias

and the right to review, by all persons or bodies, acting in a

judicial capacity under the Act.

The distinct provisions in the statute, therefore, have to be

imperatively construed in the light of its preamble and the object,

for which the special law is enacted, with Section 3, providing a

guiding factor.

21] Section 10 of the Act of 2015 clearly specify that as soon as

the child alleged to be in conflict with law is apprehended by the

police, he shall be placed under the charge of special juvenile

police unit or the designated child welfare police officer, and he

shall be produced before the Board, without any loss of time but

within period a period of twenty-four hours and in no case the

child shall be placed in a police lockup or lodged in jail.

Section 12 of the Act is the provision as regards grant of bail

to a person, who is apparently a child alleged to be conflict in law

and it would be apt to reproduce the said provision:

“12. Bail to a person who is apparently a child alleged to be in conflict with

law- (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on

bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such

manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1)

by the Board, it shall make an order sending him to an observation home or a

place of safety, as the case may be, for such period during the pendency of

the inquiry regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the conditions of bail

order within seven days of the bail order, such child shall be produced before

the Board for modification of the conditions of bail.”

22] The reading of the aforesaid provision clearly reflect, that at

the time when the child is produced before the Board, who is

accused of having committed bailable or non-bailable offence, he

shall, be released on bail with or without surety or may be placed

before the supervision of a probation office or under the care of

any fit person. However, if it appear to the Board that the

circumstances indicated in the proviso do exist, then the Board

shall record the reasons and circumstances denying the bail.

If a child is not released on bail by the officer in-charge, then

he shall be kept in observation home or place of safety as the case

may be or if such a person is denied bail, then the Board shall send

him to observation home or place of safety, for such period during

the pendency of inquiry regarding that person.

The Act further adumbrate the procedure of inquiry to be

carried out by the Board, which is expected to ensure fair and

speedy inquiry, which is imperatively to be concluded within specific

period.

Under Section 15, it is permissible, to conduct preliminary

assessment with regards to the mental and physical capacity of a

child who is above age of 16 years, so as to try him as an adult as per

Section 18 of the Act.


23] In the scheme of the enactment Chapter VII provides for

Rehabilitation and Social Re-integration and though this provision is

a focal point of the enactment, it would be necessary to refer to subsection

(2) and (3) thereof which reads thus:

“39 (2) For children in conflict with law the process of rehabilitation and

social integration shall be undertaken in the observation homes, if the child is

not released on bail or in special homes or place of safety or fit facility or with

a fit person, if placed there by the order of the Board.

(3) The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.”

Keeping in view the aim of the enactment, Section 40

provide for restoration and protection of child by adopting

different measures as suggested by the committee.

24] Observation Homes as provided in Section 47 of the Act are

the institutions established by the State Government in every

district or group of districts either by itself or through voluntary

or non-governmental organisations, which are registered under

Section 41 of the Act for temporary reception, care and

rehabilitation of any child alleged to be in conflict with law, during

the pendency of any inquiry under the Act.

Whereas place of safety, children home, fit facility and

special homes have been assigned different connotation and

functioning under the Act.

Under the Act of 2015, there is a provision for appeal in form

of Section 101, which permit any person aggrieved by the order

made by the Committee or by the Board to prefer an appeal to the

Children’s Court within 30 days from the date of passing of the

order, except in the situation contemplated therein. A person

aggrieved by the order of the Children’s Court can thereafter file

an appeal to the High Court in accordance with the procedure

specified in Code of Criminal Procedure. Similarly Section 102 is a

power of Revision to be exercised by the High Court upon an

application received by in that behalf or on its own motion.

Section 104 of the Act, is the power which has been invoked

in the present case and we deem it appropriate to reproduce subsection

(1) there of, which reads to the following effect:

“104. Power of the Committee or the Board to amend its own orders:- (1)

Without prejudice to the provisions for appeal and revision contained in this

Act, the Committee or the Board may, on an application received in this

behalf, amend any orders passed by itself, as to the institution to which a child

is to be sent or as to the person under whose care or supervision a child is to

be placed under this Act:

Provided that during the course of hearing for amending any such orders,

there shall be at least two members of the Board of which one shall be the

Principal Magistrate and at least three members of the Committee and all

persons concerned, or their authorised representatives, whose views shall be

heard by the Committee or the Board, as the case may be, before the said

orders are amended.”

25] Section 110 is the power to make rules, to be exercised by

the State Government and pertinent to note that as far as Section

104 is concerned there is no power conferred in the State

Government to make rules for its working and necessarily,

Section 104 will have to be followed in reference to it even by the

State Government.

26] From the statutory scheme enumerated above, in the

backdrop of its object, being to provide succour to the children,

and seggregate them and avoid their incarceration alongwith

adults, the statute being not only a beneficial legislation, but is

also a remedial one. It must be borne in mind that while giving

effect to the provisions, one must bear in mind the moral and

psychological components of criminal responsibility, as it is one of

the factor in defining a ‘Juvenile’. The statute, therefore,

necessarily will have to be construed having regard to its object

and the purpose which it intend to achieve in the ordinary state of

affairs and consequences flowing therefrom.

With a presumption of innocence of any malafide or criminal

intent upto the age of 18 years, as contemplated in Section 3

alongwith the imperative mandate of treating the child with equal

dignity and rights, Section 12 has introduced a mandatory

provision for grant of bail, when a child, who is alleged to have

committed either bailable or non-bailable offence, and he is

apprehended or detained by the police or he appears or is brought

before the Board, when he shall be released on bail, with or

without surety, or if the Board deems it fit, he can be placed under

the supervision of the Probation Officer or under the care of any fit

person.

The proviso appended to sub-section (1), provide for

circumstances which offer justification for not releasing a child on

bail, but it is pertinent to note that the proviso can be invoked at

the stage, when the power is exercised by the Board under Section

12 and definitely not at a subsequent stage. It is only when the

person is not released on bail by the officer in-charge of police

station in case of a bailable offence or by the Board, in case of a

non-bailable offence, a child shall be sent to Observation Home or

a place of safety, which are institutions authorised to temporarily

receive a child, so that he can be taken care of and rehabilitated,

during the pendency of the inquiry under the Act.

One thing is, however, evidently clear, that the detention in

the Observation Home or place of safety is only in the

circumstance, when the child is not released on bail or when he is

not placed under the supervision of the Probation Officer or under

the care of any fit person.

27] Since rehabilitation and social integration is the hallmark of

the juvenile justice legislation, with an individual care plan,

preferably through family based care, is contemplated by

restoring the child with his family or guardian with or without

supervision or sponsorship, sub-section (2) of Section 39

contemplate this process to be undertaken in the Observation

Home, if the child is not released on bail.

Observation Home, therefore, comes as an alternative

mechanism for hosting a child for initiation of the process of

rehabilitation and social integration. The housing of a child in an

Observation Home is, however, permissible only when he is not

released on bail, but when he is, there is no question of confining

him in an Observation Home.

28] Section 104 of the Act of 2015 will have to be read in light of

the other statutory provisions and, therefore, when it

contemplate amendment in any order passed by the Board, on a

plain reading of the provision, as it stands, it is clear, that the

amendment can be only, ‘as to the institution to which child is to

be sent or as to the person under whose care or supervision a

child is to be placed under the Act’.

The scope of amendment is, therefore, limited to varying the

institution or a person under whose care a child is placed, which

necessarily do not involve deprivation of his liberty, if the child is

on bail, where he is temporarily released, awaiting the outcome of

trial, subject to the condition of pledging some amount to

guarantee his appearance in the Court or subject to such other

conditions, which the Court may deem fit to impose. The

underlying principle used for releasing an accused on bail in

modern legal system is to secure his freedom.

The discretionary relief of grant of bail, is to be exercised by

the competent authority, on consideration of different parameters

and as laid down by the Apex Court in the case of Shahzad Hasan

Khan Vs. Ishtiaq Hasan Khan4 . The pertinent observations

therein, we must reproduce :-

“Liberty secured through a process of law, which is administered keeping in mind the interest of the accused, the near and dear ones of the victims, who lost their life and feel helpless and believe that there is no justice in the world, as also the collective interest of the community, so that parties do not lose faith in the institution and indulge in private retribution. ”

29] When the power to release a child produced, is conferred on

the Board, which comprise of a Metropolitan Magistrate or a

Judicial Magistrate of First Class or Chief Executive Magistrate, a

legally trained mind alongwith two social workers, who are

entrusted with the responsibility of exercising the discretion of

releasing a person on bail, being guided by the requisite

4 (1987)2 SCC 684


parameters and once the CCL is released on bail, he is released

from the custody of police, who had apprehended him, on account

of his involvement in an alleged offence, either bailable or nonbailable,

and his freedom is secured to him, awaiting his trial,

though in certain circumstances, the order can be revoked and he

can be referred in custody.

However, without recalling the order passed by the Board,

which had released him on bail, by invoking Section 104, and by

justifying it on the pretext that the Board only placed him in an

‘Observation Home’, is an argument, which definitely contradicts

the purpose with which he was released on bail i.e. set free,

pending the inquiry/trial.

The reference to the word ‘institution’ to which the child is

to be sent under Section 104(1) is with reference to cases where

bail is refused or not granted under sub-section (2) and (3) of

Section 12 of the Act. Similarly the use of the words, ‘in whose

care or supervision’ a child is to be placed is contained in subsection

(1) of Section 104 is relatable to the words used in subsection

(1) of Section 12, viz. a care of a person like a family

member or the supervision of the Probation Officer. This would

envisage only changing the order passed under sub-section (1) of

Section 12, so as to alter only the person in whose care or the

Probation Officer under whose supervision the child had been

ordered to be placed and definitely would not cover a situation of

remaining or restoring the child to a Observation Home,

particularly when he is on bail and is entitled to be ‘free’.


30] In passing the order dated 21.05.2024, the Board has thus

misguided itself, by exercising the power under Section 104 and

directing that the child will stay in Observation Home, though it

has clarified that he continue to be on bail and if it was so, then he

ought to be a free person, subject to the orders passed by the

Board earlier i.e. on 19.05.2024, as it is the stand adopted by

Respondents that the same is not cancelled, but only amended.

Depriving the CCL of his freedom by confining him in the

Observation Home, definitely runs contrary to its own order

passed on 19.05.2024.

31] Pertinent to note that continuing with the same illegality,

though being on bail, repeated applications are moved by the

Investigating Officer before the Juvenile Justice Board at Pune,

for extension of his detention in Observation Home, by further

period of 14 days and surprisingly on the grounds of his release

amounting to obstacle in progress of investigation or his further

detention is necessasry in Observation Home for collection of

additional evidence etc.

The above grounds ought to have been pressed, when the

question of releasing the CCL on bail was under consideration and

to determine whether the CCL was entitled for his release on bail,

and definitely not at the time when he is already a free man, on

securing bail in his favour by a competent authority i.e. the Board,

a statutory body constituted under the Act with the power

conferred to released a child on bail or refuse the same, in

exercise of the power under Section 12(1) of the Act of 2015.


32] The subsequent orders extending the Observation Home

custody on two occasions, are the orders passed without

jurisdiction, as without cancelling the bail, it is not permissible to

remand him to any custody, when it may be even an Observation

Home, there is no provision in the Act to adopt such a course.

The Juvenile Justice Board has, therefore, clearly erred in

assuming the power to detain the CCL in Observation Home,

contradicting its own earlier order releasing him on bail, by

construing its subsequent order, as amendment of the earlier

order, which is a grossly erroneous assumption, as there is no

question of confining a free child, who is already on bail.

Reliance placed in the order, on Sections 3(iv), (vi), (vii)

and (xiii), Section 12 and Section 104 of the said Act of 2015 and

Rule 7 and 21 of the Maharashtra State Juvenile Justice (care

and Protection of Children), Rules, 2018, as being the source of

power to pass such an order is completely misplaced. Section 3

(iv), (vi), (vii) and (xiii) deal with general principles of, best

interest of the child, safety of the child, positive natures,

repatriation and restoration and reuniting with family. Whereas

Rule 7 deals with the role and functions of the Board, while Rule

21 deals with procedure for rehabilitation. None of these

provisions, let alone Sections 12 and 104, would authorize

detention, in an Observation Home of a child who is on bail.”

33] Once we have arrived at a conclusion that the order

passed by the Board on 22/5/2024 by invoking Section 104 of the

Act of 2015 and the other relevant provisions, is illegal and

beyond the powers conferred under the statute and therefore

illegal, we shall now answer the objection of Mr.Venegavkar about

the maintainability of a Petition seeking writ of Habeas Corpus, as

he would heavily fall back upon the decision of this Court in case

of Naresh Goyal (supra).

In the said decision, the argument was advanced in favour of

maintainability of writ of Habeas Corpus, considering that the arrest

was ex-facie illegal, being without jurisdiction and the remand

orders passed by the Competent Court were without application of

mind, and rather passed in a mechanical manner, resulting in

complete violation of Article 21 and 22(1) of the Constitution.

The contention raised being, no remand orders could rectify

the illegality committed by the prosecution, as it was the duty of the

Remanding Court to ensure that the constitution and statutory

safeguards were complied with, but there was a failure on part of the

Competent Court to do so.

Opposing the relief, the counsel for Directorate of

Enforcement, objected to the maintainability of the petition on the

ground that the writ can be issued only when it is found that the

person is in custody without any authority of law, or has been

illegally detained. The argument advanced was, several remand

orders have been passed and the petitioner was in judicial custody

and it was therefore, open for him to challenge the remand orders

before the appropriate forum, and as on date, the petitioner was

found to be in lawful custody by virtue of judicial orders.

By referring to the precedents in form of the authoritative

pronouncements in case of Ram Narayan Singh Vs. State of Delhi5,

5 1953(1) SCC 389


Kanu Saniyal, District Magistrate, Darjeeling,6 and V. Senthil

Balaji (supra).

Mr.Venegavkar had urged that neither the arrest of the

petitioner was ex-facie illegal nor are the remand orders and he

would draw benefit from the following observations of Their

Lordships of the Apex Court;

“The writ of Habeas Corpus shall only be issued when the detention is  illegal. As a matter of rule, an order of remand by judicial officer,

culminating into a judicial function cannot be challenged by way of writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies. When there is non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too, by way of challenge.”

34] By referring to the facts in the case involving various dates

of remand, when the petitioner was sent to judicial custody, it was

recorded that admittedly, none of the remand orders after filing of

the petition was challenged and the contention on behalf of the

petitioner was recorded, to the effect that the arrest and the first

and second remand order itself being illegal, subsequent orders

need not be challenged.

It is in this background the Court determined the issue

whether the arrest of the petitioner was illegal since the grounds

of arrest were not furnished to him, but noting that this ground

was never raised at the time of first remand or second remand

and this position being not disputed, finding no infirmity in the

arrest order, the request for issuance of writ of Habeas Corpus

was declined by clearly recording that it is open for the petitioner

to avail statutory remedies.

6 1974(4) SCC 141


35] In contrast, in case of Gautam Navlakha (supra), while

dealing with the scope of Section 167(2) of the Code of Criminal

Procedure, a provision in form of default bail, a broader approach

was adopted by holding that the provision would not ordinarily

embrace house arrest, but it being a deprivation of liberty, it was

qualified as detention under Section 167 of Cr.P.C.

Pronouncing upon the issue whether a writ of Habeas

Corpus would lie against an order of remand under Section 167,

by referring to the decision in case of Manibhai Ratilal Patel Vs.

State of Gujarat and ors, (2013) 1 SCC 314 which had taken a view that a writ of Habeas Corpus shall not be entertained when a person is committed to judicial custody or police custody by the Competent

Court by an order which prima facie does not appear to be without

jurisdiction or passed in an absolutely mechanical or wholly illegal

manner, reference was made to a decision in case of SFIO Vs.

Rahul Modi, 2019(5) SCC 260 which had laid down the position of law as below:-

“19 The law is thus clear that in a Habeas Corpus proceedings,

a Court is to have regard to the legality or otherwise of the detention

at the time of return and not with reference to the institution of the

proceedings”.

It is in this background the circumstances in which the writ

of Habeas Corpus shall lie, were clearly stipulated in the following

words:-

“If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, a person affected can seek the remedy of Habeas Corpus. Barring such situations, Habeas Corpus petition will not lie.”


36] We have no hesitation in coming to a conclusion that in the

present case, both the conditions are clearly attracted, as the

remand of the CCL, by three distinct orders passed by the Board is absolutely illegal as the impugned order, are afflicted with vice of lack of jurisdiction and further orders of remand being passed by the Board, in an absolutely mechanical manner, without

considering the most significant and pivotal fact that the CCL

continue to be on bail and there is no cancellation or revocation of the order, enlarging him on bail.

37] The act of the respondent therefore, squarely fall within the

parameters laid down in Gautam Navlakha (supra) for

entertaining a writ in the nature of Habeas Corpus and in

addition, we must also note that the petitioner, the paternal aunt

of the CCL, who has filed the present petition has also prayed for

quashing and setting aside of the remand orders, on the ground

that it is illegal, which include the order dated 22/5/2024 as well

as the subsequent orders of remand and the consequent actions

based thereupon.

Looking to the manner in which the entire matter has been

dealt with by the Investigating Agency and also the various orders

passed by the Board upon the application preferred by it, we must

clearly express that this is one of the fit case where we shall

exercise our jurisdiction by issuing a writ in the nature of Habeas

Corpus, as prayed for in prayer clause (a) and issue a writ in the

nature of certiorari for quashing the subsequent orders

remanding the CCL to Observation Home.


38] In any case, by virtue of sub-section (4) of Section 1 of the

Act of 2015, the matters concerning apprehension, detention,

prosecution, imposition of penalty and procedures and decisions

or orders relating to rehabilitation, adoption, re-integration and

restoration of children in need of care and protection, shall be

governed by the provisions of the Act, notwithstanding anything

contained in any other law for the time being in force.

In the absence of any provision in the Act of 2015 for

remand of the child/juvenile, the procedure adopted by the Board

in extending the remand of the CCL from time to time by 14 days,

as contemplated under Section 167(2)(b) of the Code of Criminal

Procedure, is not applicable in case of a child who is already

released on bail in exercise of powers under Section 12(1) of the

Act of 2015.

39] Fiat Justitia Ruat Caelum, a latin phrase, which connote,

“Let justice be done though the heavens fall”, clearly convey a

principle in law, that justice must be realized regardless of

consequences and Just decisions may be made at whatever cost it

comes.

It is our bounden duty to prioritize justice above everything

else, and definitely, we are not swayed away by the uproar created

upon occurrence of the ghastly mishap, for which allegedly the

CCL is personally responsible and which has resulted in loss of

two innocent lives. We have all sympathies for the victim and

their families but as a Court of Law, we are bound to implement

the law as it stands.

Law is an objective thing and there it stands, irrespective of

whether it entails any hardship. Provisions of law must be

applied equally to all and shall definitely treat everyone equally,

as the dominant approach of doctrine of equality is equal justice,

which would encompass equal protection of law. The

administration of law should not degenerate into its choicest

application in arduous and wary situations and it impermissible

to have its inconsistent application, dependent upon who stands

before us, and in what situation, justice is pleaded.

40] The outcry, as a knee jerk reaction to the accident, resulting

into a clarion call of “see the accused’s action and not his age”, will

have to be overlooked upon assimilating that the CCL is a child

under the Juvenile Justice Act, being under 18 years and

regardless of his crime, he must receive the same treatment,

which every other child in conflict with law is entitled to receive,

as the purpose of the Act of 2015 is to ensure that children who

come in conflict with law are dealt with separately and not like

adults. Though the accident caused by the CCL is the most

hapless incident and a demand is made by the prosecution to

accuse him of ‘heinous offence’ and try him as adult, which may

receive due consideration as per law, we are bound by the scheme

formulated by the legislature, for ensuring that all resources are

mobilized including those of family and community, for promoting

the well being of a children by facilitating their development and

by providing an inclusive and enabling environment, to reduce

the vulnerabilities they may face, and also the need for

intervention under this Act, and, hence, we have permitted the

benefit conferred by the special legislation, to be availed by the

CCL, a child in conflict with law.


For the aforesaid reason, we issue a writ of Habeas Corpus

directing the release of the CCL from the Observation Home where

he is detained, despite being released on bail by a validly passed

order by the Board on 19/5/2024 forthwith. We also quash and

set aside the impugned order dated 22/5/2024 and the

subsequent orders dated 5/6/2024 and the order dated

12/6/2024, which have authorized the continuation of the CCL in

the Observation Home which, according to us, is illegal, as the

orders being without jurisdiction conferred on the Board.

41] At this stage, we must however clarify that since the

rehabilitation and reintegration of the child in the Society is a

primary object of the Act of 2015 and because of the orders passed

being in the Observation Home, if the CCL is referred to a

Psychologist or undergoing therapies with the de-addiction

centre, the same shall be continued with the CCL participating in

these sessions on the given time and date, though he shall

continue to remain in his home or any safe place, being on bail and

the conditions imposed upon him by the order dated 19/5/2024

shall continue to govern him.

In addition we also direct that the CCL shall continue to be

under the supervision of the petitioner, his paternal aunt, who

shall ensure the compliance of the necessary direction issued by

the Board to assist him to be rehabilitated.

The petition is therefore, made absolute in terms of prayer

clauses (a) and (b).

(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)

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